The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Tuesday, October 28, 2003

"The Slog": Paying the priceless price on a time-payment plan

Flypaper theory or not, the odds that we will indeed kill or capture all the terrorists are essentially zero. It is not now, nor has it ever been, realistic to expect that on the last day that the last American soldier leaves Iraq, Baghdad will resemble Des Moines, Iowa, in all significant respects.

If our security efforts in Iraq are smart and aggressive and keep constant pressure on the bad guys, there will be attrition, and there will be major successes, and the bad guys will pay a continual price. They're willing to do that, of course, and in fact they define their success that way in large measure — thus leading to the best and most profound one-liner of the War on Terror, from the American Marine who said: "It's the perfect war: they want to die, and we want to kill them." The security efforts we make are definitely worth making. But if all we were doing in Iraq was providing security, and if our success were defined as making the place fully secure, then our mission would be absolutely hopeless.

Fortunately, however, that is not the goal. We're not trying to remake Iraq into Iowa, or even into California. We're just trying to make a free, democratic Iraq. Nobody really knows what it will look like or what it will be. It's a fair guess that it might look a little like India, a little like Israel, possibly a little wobbly like Argentina — and maybe even a little like Des Moines (but more likely a little like Los Angeles or Las Vegas). It'll be up to them to decide.

We have paid, and will pay, many billions of dollars to help achieve that goal. That's not chump change, although viewed in comparison to our national economy, or even in comparison to the effects that 9/11 have had on our national economy, it's not that huge either. We'll spend that money over time; we couldn't just show up in February and open up our national wallet and say, "Okay, here, we're ready to buy now ... One 'free, independent Iraq to go, please, sir — and easy on the AK-47 sauce."

But that's the small price. Of the large price, the priceless price, we frankly expected to pay more up front. The right-up-front part of the priceless price turned out to be smaller than we figured, vastly less than we'd feared, because our dickerers were so very capable and creative and brave. But despite the front-end loading, the priceless price for a free, independent Iraq — the price paid in the blood and lives of American soldiers, and in the blood and lives of the innocents from Iraq, America, and elsewhere who the bad guys pick as softer targets — is also necessarily a payment over time.

There are no refunds of the priceless price. The priceless price is never a loan and always a grant.

It is altogether likely that during every year, every month, and every week that American troops are in Iraq, some few of them will leave horizontally, inside a flag-draped coffin inside the belly of an Air Force transport plane bound for Dover AFB. "Success" will be if the last of them leave behind a free, independent Iraq; "failure" will be if the last of them leave behind something that collapses back into anarchy and fascist totalitarianism (either Islamic or secular).

And it's a a dicey deal at best. There are no guarantees that what we are purchasing for the Iraqi people — purchasing over time with the blood of both American soldiers and the bad-guys' collateral targets — is something the Iraqi people will be able to keep. In fact, there will likely be heated arguments (among Americans, among Iraqis, and between the two) regarding when Iraq "free and independent enough" to justify our leaving, and the act of our leaving will undoubtedly have both salutory and destabilizing effects. Yet at some point we'll have to say, "Enough. It's time to leave, we've done our best in giving you tools and a head start and some forward momentum into the Twenty-First Century." We'll be gambling that we're right, but there's no way to avoid that altogether, and no way to minimize the risks other than by actually doing our best before we leave.

Even in the best-case scenario, there will still be some damned fool teenager with an RPG or an AK-47 or a car-trunk full of explosives — probably not even an Iraqi, but someone from a place still without much hope — who's been brainwashed to believe that he'll become immortal by killing an American soldier. Or a Red Cross aid worker or even a Reuters reporter. And there will be yet another "incident" in Baghdad of the sort we tend, thankfully (and a little ashamedly), to associate more with Tel Aviv than with Des Moines. It will be tragic. But if the Iraq we're leaving behind us is free and independent (even if not terror- or crime-free), it won't spoil or negate our victory; perversely, it will confirm it.

If you expect the body-count meter to ever stop turning over while we're still giving the vast majority of Iraqis (a/k/a "the good-guys") the tools they need to keep a free and independent Iraq when we're gone, then you're defining victory the wrong way, friend and neighbor. We don't know yet how many more lives, and how many more lesser but still horrifying injuries (arms and legs blown off, for instance), we'll have to pay while we're there doing what has to be done to get to an Iraq that has a chance to stay free and independent.

And neither the end result nor the price we'll end up paying en route there are at all inevitable. But two things are clear:

Being stupid along the way means we get slower results and pay more in both mere dollars and in the priceless price.

Quitting and running now means we forfeit all we've paid to date.

It's the recognition of those facts — of the fact that we have to keep asking ourselves continuously "Is this working? Can we do better? Are we being bold and creative or are we just going through the motions in a sort of 'UN aid to wartorn nations' way (viz the UN's Palestinian refugee camps dating back to 1946) — which prompted SecDef Rumsfeld to write his now-famous "long, hard slog" memo. God bless him, he's aware that we are still negotiating the priceless price on a daily basis as part of the overall contours of the deal. Asking and re-asking those questions will end up keeping more American blood inside of live Americans, instead of soaking into the Iraqi dirt, than otherwise. But not all of it; never all of it.

So there will be ample bad news on the way to victory. Be reconciled to it. Resist the temptation to hold your breath waiting for CNN to declare, "Iraq is at peace, all the terrorists have surrendered, and we have finally won!" Because that's never going to happen — not even in the best-case scenario, not even when the last American soldier leaves free and independent Iraq. Don't let some moron trying to eek out a slightly better Nielsen rating than his competitor at the next network over blind you to the appropriate measure of our success, or the timetable it will require.

This — like the fight my father's generation (what Brokaw calls "the Greatest Generation") fought in the 1940s — is a worthy fight for the descendents of the founders of our country. What we are fighting to create in Iraq may be every bit as world-changing and influential outside its own literal borders as what the makers of the American revolution made in the 1770s.

Is it up yet?

Miss Afghanistan & "Democracy! Whiskey! Sexy!"

On Friday, with the headline "AMERICA 100, TALIBAN 0," Prof. Glenn Reynolds a/k/a InstaPundit posted a cheesecake photo of a young woman named Vida Samadzai who is competing as "Miss Afghanistan" in the Miss Earth 2003 International Beauty Pageant in Manila. His only text read, "This says it all!" I gather that he offers the fact that this attractive young woman is now free to compete in an international beauty pageant as proof that Afghanistan's liberalization is proceeding apace after its liberation, whereas under the Taliban's regime she'd be relegated to a back room, a burqa, and anonymity. Prof. Reynolds updated his post to say that "Weirdly, this post got me a lot of critical email." He adds:

I'm not a "conservative." I'm strongly pro-bikini. I don't believe in "traditional family values" as a political platform. I'm more in the Democracy! Whiskey! Sexy! category.

The original link back to the Hindustan Times offered several more pictures of Ms. Samadzai and other contestants, all taken during the swimsuit competition. As I've been composing this post, however, that link appears to have gone sour, with the subject page having been removed. Instead, there's a new article up reporting that "President Hamid Karzai's minister for women's affairs has condemned Miss Afghanistan." (Although the 10-picture slideshow is gone, the news article does reprint a picture very similar to the one that InstaPundit ran, plus one of Ms. Samadzai along with Miss China and Miss France. Hoorah for the Indian press! Solely in the interest of enabling full, informed, and fair-and-balanced commentary on this issue, I've swiped republicized all three photos here.)

The Hindustan Times' caption with its original story provided some fairly pertinent information that Prof. Reynolds may have missed:

The 25-year-old Kabul born beauty left Afghanistan in 1996 to live in California. Samadzai who is taking up international business at University Cal State Fullerton plans to visit Kabul soon.

I know that it's quite common for young women competing in beauty pageants to compete for cities, regions, states, or countries with which they may have only the most attenuated ties, and I don't fault Ms. Samadzai for competing on behalf of her native country from her present home in California. Nor do I fault her for escaping the Taliban's regime in 1996 or for seeking an education at Cal State-Fullerton. But her participation in this contest as a representative of Afghanistan would seem far less likely to be a publicity stunt if she currently lived there, and that participation says almost nothing about what's happened in Afghanistan since September 11, 2001.

I, too, am strongly pro-bikini, democracy, and whisky (I prefer the variety from Scotland for reasons having nothing to do with its lack of the "ey" ending), and I agree that Ms. Samadzai and the other contestants who were pictured in the slideshow are indeed very sexy. (Miss Australia in particular took my fancy.)

But reading Prof. Reynolds' post, and then the Hindustan Times caption put me immediately in mind of the "beauty pageant" depicted in "Miss Saigon" for reasons that will be immediately obviously to anyone who's seen that play and that would take too long to explain for anyone who hasn't. Suffice it to say that the play views America's participation in the Vietnam war through profoundly cynical French eyes; among the operatic lines assigned to the male romantic lead — an American marine who falls for the young virgin being auctioned at a Saigon brothel — is, "Christ! I'm American — how could I fail to do good?"

The comparison between Miss Afghanistan and eponymous character of "Miss Saigon" falls apart after even a little reflection — as do most of the parallels between the war we fought in Vietnam and the current War against Terrorism, as fought in the Battle of Afghanistan or the Battle of Iraq. And beauty pageants aren't uniquely an American phenomenon, no more than fascination with the youthful female form is. The Miss Earth Pageant, for example, is a Filipino Johnny-come-lately to the beauty pageant biz.

Ultimately, "Democracy! Whiskey! Sexy!" is useful shorthand for a set of liberties that we champion and promote, and as President Bush has noted in recent speeches, these values ultimately belong to free people everywhere — to accept or reject as they choose. But at the most extreme margins — the transition from burqa to bikini, for example — there are likely to be some reactionary reactions; and one wonders when, if ever, "Miss Afghanistan" is likely to be a current resident of that country.

In the meantime, IslamOnline.net reports that unnamed Afghanis believe that Dubya is behind this — it's an ploy to influence his re-election campaign, they say. (Seriously.)

Friday, October 24, 2003

Method to the Socratic madness of law schools?

Blogger and Texas Law School Professor Brian Leiter calls the Socratic Method "the scandal of American Legal Education." (Actually, I thought the fact that Bill and Hillary Clinton once taught at the University of Arkansas Law School was the scandal of legal education, but that's because I'm a charter member of the vast right-wing conspiracy.) Blawgers Curmudgeonly Clerk and Pejman Yousefzadeh have responded with interesting, albeit slightly differing views from their own respective law school careers. (The title of the Clerk's post — "Die, Socrates, Die!" — will give you a good hint about where he lands on the subject.)

If you don't know what the Socratic Method is, immediately buy or rent and watch the late, incomparable John Houseman — whom I once saw and heard deliver probably the best speech ever given by an actor at a law school — as Professor Kingsfield in the 1973 movie classic about law school, The Paper Chase. By the time you get to the "Mis-tah Haht! Here is a dime ..." line, you'll understand the Socratic Method, and pretty much also understand Professor Leiter's criticism of it. The shortest definition of it is "teaching by asking instead of by telling." It's apparently still at least officially "en vogue" at the University of Chicago Law School, among other places.

My own personal and nonfictional introduction to the Socratic Method still gives me occasional nightmares. When I began Texas Law School in August 1977, reading assignments for the first day of classes were posted in advance, and students were expected to be fully prepared to discuss the cases that had been assigned. My property law professor — a very popular, articulate, and charismatic teacher not only at the law school but statewide in CLE and bar preparation courses — not only posted the assigned pages, but warned us that someone "whose surname begins with the letter D will be the first person called upon." Having seen The Paper Chase already, I was appropriately terrorized before class, but I thought I was prepared.

Just as Kingsfield had done in the movie, my property prof strode down the aisle of the packed ampitheatre classroom, opened his casebook upon the lecturn with a loud bang, and peered back and forth briefly from his alphabetical seating chart to the rows of terrified students. I could have sworn he was looking directly at me when he said, "Mister ... D______!"

But it was the fellow to my immediate left. I managed to retain control of my bladder, but only just.

"Mister D_____, please orally brief for the class the first of the assigned cases in our casebook, 'Goddard against Winchell.'"

Mr. D_____ cleared his throat and began bravely enough: "This is a case about who should be declared the owner of a meteorite, the passerby who first spotted it, or the farmer in whose field it fell—" when he was interrupted.

"Mister D_____! Is there anything you think you ought to have told us before mentioning the word 'meteorite'?"

"WRONG! Mister D_____, did you read the court's opinion in 'Goddard against Winchell'?'

"Yes, of course, Professor."

"And what did you read before you read about meteorites or farmers or anything else?"

A long pause. "Ummm ... ummm ..." At this point, several other hands shot into the air, and thus everyone in the class immediately learned who the self-intended "gunners" for our section of freshlaws would be for the year. But the professor ignored them; his entire attention was riveted on Mr. D_____. "I guess ... I read ... the name of the case—"

"Ex-ACT-ly, Mister D_____! You read the name of the case! What was the name of the case?" demanded the professor.

"Uhh ... it's 'Goddard versus—"

"Oh, IS it now? Is it 'versus,' Mister D______? Or is it an abbreviation, 'vee ess' followed by a period? Or perhaps just a 'vee' followed by a period?"

"Uhhh .... uhhh ...."

"Or was it the word 'against' instead? And Mister D_____ ... why does this matter?"

"Uhhh ... ummmm." I remember at this point looking beneath Mr. D_____'s chair to see if there was blood on the floor yet.

"Who sued whom, Mister D_____? What, if anything, does the name of the case tell us about that? And why does that matter? Or does it?" By this time the responsive noises coming from Mr. D_____ could no longer be expressed in any alphabet known to any linguist on earth. "Does the order of the names tell us who originally sued first, or does it tell us who lost and therefore was the party bringing the appeal? Eh, Mister D_____? Speak up, man!"

And so forth, on and on about the case name. "Do the first names of the litigants matter? Why not? What if the litigant has a common name like Smith?" The professor finally broke down and told us all something about what one can usually deduce from the order of the litigants' names of the appellate opinion, but he let us know that this was an exception — did we expect to be spoonfed? — and we all breathed a giant sigh of relief for poor Mr. D_____, who we assumed was now off the hook.

But no. "Continue, please, Mister D_____."

"Ummm, okay. Ahh. Uhh. This was a case about a meteorite—"

"But Mister D___, was there nothing more of significance after the case name but before you came to the word 'meteorite'?" Ten minutes later, Mr. D____ eventually managed to stammer out that the opinion had been written by the Iowa Supreme Court, and we'd had some back and forth between him and the professor about the significance of that datum — state versus federal court, intermediate versus ultimate appellate level, whether and when this sort of issue might be reviewed in the U.S. Supreme Court, the "subsequent history" or lack thereof, et cetera, et cetera. Then there was a little bit about the citation — meaning the volume number the opinion appeared in, and its page number, and did it affect your credibility with courts if you used the abbreviation "2nd" for "second series" as opposed to just "2d" ... and more about what kind of book it appeared in, whether in an "official state reporter" or in a "regional reporter," and whether regional reporters could be trusted, and did you need to list citations to both or was one preferred and if so which, and did the answer to that question vary depending on whether you lived and practiced in Iowa or in Texas ... and more about who wrote the opinion, and whether it was signed or per curiam or en banc or from a panel ... and about the year, and whether it being very old meant it was venerated and sacred or old and unreliable ....

Mr. D____ was on the hot seat for the entire 50-minute class, and he never got to discuss the actual facts of the case or its holding. When the bell rang, the Professor concluded by saying, "We'll continue with Mister D___'s briefing on 'Goddard against Winchell' tomorrow" — whereupon Mr. D___ leapt from his seat and bolted from the classroom to the nearest lavatory, where he was heard losing his breakfast into a toilet.

But the next day, we did not continue with Mr. D____. He wasn't there. Although he was a smart kid who'd graduated at the top of his class from a smaller college in a nearby state and practically aced the LSAT, he was clearly unprepared for the emotional stress of the Socratic Method as violently administered, and he dropped out. I don't know if he found another law school or became a dentist, but we never saw him again.

That's an absolutely true story. And yet I don't hate the Socratic Method. My recollection of my classes during my second and third year of law school, when it was less frequently used, is that on the whole those classes tended to be more tedious and boring. Lectures get dull if you're not being asked open-ended questions that follow in a logical sequence, one upon another, and that are grist for debate. Yes, it can be a brutal shock and it can be overdone, as it was in the case of poor Mr. D_____ — but so can non-Socratic Method questioning, for that matter.

In fact every single question that Mr. D_____ was asked is something a practicing lawyer needs to know in order to evaluate what significance to give an appellate opinion in any field of law; although brutal, in hindsight my property professor's questions were a bravura performance. And I vividly remember that day and that class twenty-six years later; I can't say the same for any lecture I've ever seen. Socratic method examinations don't always have the quality of watching a slow-motion train wreck that it had for me and my classmates on that first day of class, but on the whole, the performances I saw from my classmates were interesting enough. Oftentimes they taught me something, and I think sometimes they taught the professors something too! And if one can't learn something even from a classmate's bad performance, one isn't flexible enough in one's notions of learning.

Law is, after all, an art and not a science, and it varies with every performance. There was indeed a substantial grain of truth in The Paper Chase, and by the end of that movie one understands why Harvard 1L James Hart has run through the full range of emotions toward Professor Kingsfield, from hatred and loathing, to grudging respect and admiration, to ultimate affection and appreciation. I will grant you that few professors can perform the Socratic Method of teaching at the "Kingsfield" level; but then, I've never made a closing argument quite as good as the ones they make every week on "Law & Order" or "The Practice" — yet I still enjoy those and occasionally get an idea from watching them.

Thursday, October 23, 2003

Justice Scalia was right to recuse himself in the Pledge case

[Update (Tuesday, March 9, 2004, at 7:45pm): Near the end of an article she published today entitled "Fighting Words: Leave Scalia Alone," Slate senior editor Dahlia Lithwick linked my post here from October 2003 via the concluding three words in a sentence in which she wrote: "And in a perfect world, I might also ask that justices limit their speeches to scholarly, rather than advocacy groups, as suggested here."

I'm always glad to be linked, and welcome those of you visiting my humble blog via Ms. Lithwick's link. But you'll look in vain for any suggestion in this post, or elsewhere in my blog, that Supreme Court Justices (or other judges) ought to "limit their speeches to scholarly, rather than advocacy groups." I didn't say or imply or suggest that, and in fact I don't agree with the proposition.

What I did say at one point in my post below was that Justice Scalia's public statements to the Knights of Columbus' "Religious Freedom Day Rally"about the Newdow Pledge of Allegiance case — which was then pending before the Ninth Circuit, and is now pending in the Supreme Court — probably didn't fit within the exception to Canon 3A(6)'s prohibition against commenting "on the merits of a pending or impending action" for "scholarly presentation[s] made for purposes of legal education." I argue below that Justice Scalia was therefore right to recuse himself in Newdow, and that he almost certainly did so based on Canon 3A(6), even though the Code of Conduct for United States Judges within which Canon 3A(6) is contained does not, by its terms, apply to the Justices of the Supreme Court. I further argue that Scalia almost certainly did not base his self-recusal in Newdow on 28 U.S.C. § 455(a), which is the statute now relied upon by those insisting (erroneously, I believe) that he ought to recuse himself in other litigation before the Court that involves Vice President Cheney (in his official, not personal, capacity).

For what it's worth, I actually agree in this instance with the main thrust of Ms. Lithwick's article — that is, that Supreme Court Justices aren't proscribed from speaking on hot legal topics to advocacy groups on penalty of having to recuse themselves from cases involving those issues. But as I conclude below, they should only "speak about specific pending cases — as opposed to their speaking generally about the law and the Constitution — from the bench when they're ruling on those specific pending cases."

Further comments on this topic are welcome, but please leave them on the new post I've put up. My original post from October 23, 2003, follows:]

------------------

With respect to the propriety or necessity of Justice Scalia's self-recusal from the US Supreme Court's consideration of the Newdow decision from the Ninth Circuit{note1} regarding whether "under God" may properly be part of the Pledge of Allegiance, I find myself reacting rather strongly to a subsidiary point in a well-tempered argument in National Review Online between lawyer Robert D. Alt ("a Fellow in Constitutional Studies and Jurisprudence at The John M. Ashbrook Center for Public Affairs at Ashland University") and Dr. Matthew J. Franck (chairman of the political science department at Radford University in Virginia).

In his article entitled "The Thin Law Line: Judicial Catch-22," Mr. Alt explains that

Justice Scalia did not articulate why he recused himself from the pledge case, but it is widely understood that he did so because of a speech he delivered in Fredericksburg, Virginia in January. In his speech commemorating the 226th anniversary of the Virginia Statute for Religious Freedom, Scalia suggested that the Ninth Circuit's pledge opinion was a prime example of the courts' excessive zeal in keeping God from government.

Mr. Alt explains that there are "special limits placed on what [judges] may say by the judicial codes of ethics and by recusal statutes," and uses Justice Scalia's self-recusal{note2} as an example of their normal operation. In other words, he assumes that Justice Scalia's decision not to participate in this case was correct (or at least permissible and readily understandable). Instead, the main thrust of his article is that these "special limits" also justify, and indeed compel, the refusal of judicial nominees to answer "very specific questions about legal issues which are likely to come before their prospective courts" during their Senate confirmation hearings.

In his reply entitled "Recusal Absurdity," however, Prof. Franck disagrees that these rules ought to be permitted to screen judicial nominees from this probing inquiry — and to begin that broader argument, he challenges the premise that Justice Scalia was obliged to recuse himself in the Newdow case.

I'm not prepared yet to address the broader argument regarding judicial nominees. But I'm fairly certain that Prof. Franck — a well-educated and good writer, but apparently a nonlawyer — profoundly misunderstands the relevant federal statutes, a quasi-statutory ethical code, and the interpretive caselaw. Because of that misunderstanding, he effectively trivializes them — to the profound potential disservice of his readers.

Prof. Franck correctly quotes one of the relevant statutes and the relevant provision from the appropriate ethical code:

Title 28, section 455(a) of the U.S. Code reads, "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." And Canon 3A(6) of the "Code of Conduct for United States Judges" reads, "A judge should avoid public comment on the merits of a pending or impending action."

But he goes astray immediately afterwards, when he writes:

The first of these, which is actually law (though of doubtful enforceability where life-tenured judges are concerned), should be understood as speaking to the impartiality of a judge regarding the parties to a case, not the legal issues that a case may raise. Indeed, every subsequent part of the section is couched in exactly such terms — avoiding conflicts of interest owing to the identity of the parties, not the opinions judges may have of the legal questions they raise.

Let's start with his parenthetical aside regarding section 455(a) — "(though of doubtful enforceability where life-tenured judges are concerned)." Just ask U.S. District Judge Thomas Penfield Jackson whether he's doubted section 455(a)'s enforceability since the US Court of Appeals for the D.C. Circuit used it to disqualify him from presiding over the proceedings on remand after the appeal of the government's massive antitrust case against Microsoft. Or ask Bill Gates how happy he is to have a different judge presiding over the "remedy" phase of that case now. Or simpler still, just look at the top of the window in which you're more than likely reading this, where it probably still says "Microsoft Internet Explorer," and recall that Judge Jackson's ruling would have busted up Microsoft into three different companies.{note3} I wouldn't call section 455(a) an inconsequential or "doubtfully enforceable" statute.

If Prof. Franck meant only to say that it's unlikely that such violations will give rise to successful impeachment proceedings, that is probably true, even in extreme examples. But as I discuss below at more length (in connection with another statute that Prof. Franck doesn't mention), there is much that can affect a life-tenured judge short of impeachment. And for proud men and women of the caliber who become federal judges — a class of citizens not noted in general for their diminished egos — even the sort of judicial mortification that Judge Jackson suffered (and deserved to suffer) can be substantial.

Prof. Franck is also simply wrong in arguing that section 455 "should be understood as speaking [only] to the impartiality of a judge regarding the parties to a case, not the legal issues that a case may raise." Justice Scalia himself confirmed this in his majority opinion in Liteky v. United States when he noted that Congress' "1974 revision made massive changes" to section 455, and in particular that section 455(a) "was an entirely new 'catchall' recusal provision, covering both 'interest or relationship' and 'bias or prejudice' grounds."{note4} Too strong a "bias or prejudice," even if not particularized as to any of the specific parties in a given case — when "such a high degree of favoritism or antagonism as to make fair judgment impossible" — can still, albeit very rarely, be grounds for recusal.{note5}

Prof. Franck quotes some colorful language from Lee v. Weisman{note6} — in which the Court majority declared prayers at high school graduations to violate the Establishment Clause — and in which Justice Scalia sarcastically opined that the Pledge, with its "under God" affirmation, "ought to be the next project for the Court's bulldozer." From this, Prof. Franck argues that "Justice Scalia is already amply on record about the pledge and 'under God,' and in much more comprehensive ways than anything he said in Fredericksburg." He continues:

If Scalia has expressed such an obvious hostility to a judicial ban on "under God" in an actual case, what on earth can be objectionable about the far-less copious remarks he made in January, when Newdow was only a remote possibility on the Court's docket? Only the most artificial distinction between on-the-bench and off-the-bench expressions of opinion can sustain his recusal.

Prof. Franck is again wrong, however, because the distinction between opinions stated on and off the bench is very central to the entire history of caselaw on recusal and disqualification. Again from Liteky:

[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved.{note7}

Stop and think about it for just a minute, Prof. Franck: In every single case, there's a loser and a winner. In every single case, the loser can point to something that the trial judge said from the bench which demonstrated "hostility" toward him or his case — even if it's nothing more than saying, "You lose." And when a judge has been on either the trial or appellate bench a few years, the potential for that kind of showing of "bias" and "prejudice" grows at a steady, inexorable clip. If it were permitted for statements from the bench to be a basis for showing disqualifying bias, judges would become increasingly subject to disqualification as they became more experienced, and the judicial system would collapse under the weight of disqualification motions. Because of this distinction, then, between on- and off-the-bench statements of opinions in the caselaw regarding disqualification, not even desperate death penalty lawyers move to disqualify Justices Rehnquist, Scalia, or Thomas on the basis of prejudice, even though you could make quite an argument that their statements from the bench demonstrate a strong predisposition in those cases; nor do state attorneys-general move to disqualify Justices Stevens on opposite grounds of implacable hostility to the death penalty.

Statements made "from the bench" not only have the virtue of being public, but in general the rulings that they're made in connection with are themselves reviewable on their merits. If the ruling proves to have been badly wrong, it gets reversed on appeal; if the rationale announced in an appellate opinion can't stand the test of time, it gets overruled. They are therefore precisely the class of statements least likely to give rise to either the perception or fact of hidden and uncorrectably unfair results. In short, there's nothing "artificial" about the distinction between on-the-bench and off-the-bench expressions of opinion.

So: I've dumped all over Prof. Franck for misunderstanding the law of disqualifications, and for underestimating the importance and the reach of section 455. Am I therefore asserting that section 455 was the basis for Justice Scalia's recusal?

Heh. Well, no, actually I'm not. As part of his discussion in Liteky of whether the 1974 revisions to section 455 had also changed previous law regarding the "extrajudicial source doctrine," Justice Scalia also made this fascinating assertion:

The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for "bias or prejudice" recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for "bias or prejudice" recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. Since neither the presence of an extrajudicial source necessarily establishes bias, nor the absence of an extrajudicial source necessarily precludes bias, it would be better to speak of the existence of a significant (and often determinative) "extrajudicial source" factor, than of an "extrajudicial source" doctrine, in recusal jurisprudence.{note8}

The bit I've bolded is clearly dicta, but it certainly makes it unlikely that Justice Scalia disqualified himself in Newdow because he'd already made up his mind in the abstract about legal issues pertaining to the Pledge. In other words, it almost certainly was not section 455 and his "general pre-existing biases" that prompted Justice Scalia to recuse himself. Contrary to Prof. Franck's argument, the Virginia speech did matter, and indeed, is almost certainly the explanation for the recusal. The relevant ethical rules — and another statute that Prof. Franck may not have even known about — strongly support Justice Scalia's decision to recuse himself.

Perhaps Professor Franck is one of those "people who have not served on the bench [who] are often all too willing to indulge suspicions and doubts concerning the integrity of judges."{note9} He seems to think that the Code of Conduct for United States Judges is something that can be shrugged off or evaded pretty much at will:

The Code of Conduct, by contrast, is not a law at all, but a set of admonitions adopted by the judiciary to guide its own members. (Notice, after all, the "should" language, as opposed to the "must" of the U.S. Code.) And while Canon 3A(6) cautions against "public comments on the merits" of a case, the word "impending" is terribly vague. Was Newdow an "impending" case before the Supreme Court on January 12? Maybe, maybe not. (Many observers expected the Ninth Circuit to grant an en banc rehearing and reverse the three-judge panel, in which case it is virtually certain there would have been no Supreme Court review.) And the same canon goes on to specifically exempt any "scholarly presentation made for purposes of legal education," which is exactly what Scalia was doing that day in Fredericksburg.

It's true enough that the Canons are “aspirational goals” which cannot by themselves “be the standard for judicial discipline,” and that “it is not intended that disciplinary action would be appropriate for every violation of [the Code’s] provisions.”{note10} But serious violations of the Code can be, and have indeed been, treated as being "conduct prejudicial to the effective and expeditious administration of the business of the courts" under 28 U.S.C. § 372(c), which was recodified in 2002 in substantially similar form at 28 U.S.C. § 351(a). Prof. Franck didn't mention, and perhaps was unaware{note11}, of this statute, but it indeed provides sharp statutory teeth behind the Code — teeth that can lead not only to a judge's public reprimand or censure, but also to preventing him from hearing additional cases, certifying him as disabled, or making a formal request that he retire, see28 U.S.C. § 354(a)(2)(A) & (B), and potentially to referral to the House of Representatives for impeachment proceedings, see28 U.S.C. § 355. So mere "admonition" or not, Canon 3A(6) ought to be taken very seriously indeed by any judge.

Nor do I find "impending" — the dictionary definition of which is "To be about to occur" — to be "terribly vague." Rather, since the Canon says "pending or impending," it obviously intends to draw some sort of distinction between what's already on file in a particular court (pending) and what's reasonably foreseeable to be on file in the near future (impending). Justice Scalia's speech was in January of this year — and the Ninth Circuit denied rehearing en banc in February, meaning that cert petitions ended up being filed within weeks of his speech. How much more "impending" could the case have been?

And its recent televised star turn in the Shelley case notwithstanding, I think you'd have found it hard to get even money among knowledgeable betters on whether the en banc Ninth Circuit was going to overturn its panel's decision in the Pledge case. But whether regardless of whether it did or didn't, the odds were very substantial that the case would have been before the Supreme Court soon enough on a petition for cert by one side or the other — whichever ended up losing in the Ninth Circuit — and even if cert had ended up being denied, that would still be a decision that Justice Scalia would have been expected to participate in and vote upon.

I also have considerable doubt whether the "Religious Freedom Day Rally" at which Justice Scalia was speaking is the sort of "scholarly presentation made for purposes of legal education" intended within the exception in Canon 3A(6). The Knights of Columbus is a fine organization and certainly includes some smart folks, and I'll grant you that the general purpose of the gathering had to do with celebrating the Constitution, which is doubtless why they invited Justice Scalia to speak. But I think that in general, to promote the purposes of the Code, exceptions to it ought to be read narrowly, and "legal education" and "scholarly presentation" imply to me an audience of lawyers or law students — a speech at a continuing legal education seminar, a lecture at a law school, certainly a law review article, or maybe, on the very outside limits, a speech at a bar convention, but only if it's given before happy hour.

In short, Prof. Franck's suggestion that Newdow didn't fit within the plain scope of Canon 3A(6) is just silly.

Conclusion: Neither judges nor poli-sci profs ought to be looking for loopholes to avoid the rules of judicial ethics

Prof. Franck winds up with a pretty good pitch:

To speak as plainly as possible, what we want in our federal judges are people who have strong opinions about the law and the Constitution. Do we really want to live by a fiction that says that their only opportunities to speak those opinions should occur on the bench in the decision of cases?

But he's missed the point again, rather badly. What Justice Scalia did was not just speak strongly about the law and the Constitution while off the bench. And he didn't just speak about the Pledge in the abstract. He specifically spoke about an active case — a hugely controversial and highly publicized one that was still "pending" in the Ninth Circuit and therefore "impending" potential review by his own court. In hindsight, he probably wishes he hadn't done so, and he frankly ought not have. But having made the blunder, he's taken the honest and ethical path in recognizing its consequences.

I'm sure Prof. Franck is a fine political scientist, and I see that he's written a book about the Supreme Court and co-edited another; despite being an academic, he probably is not a wild-eyed liberal, and he appears to favor judicial conservatism from the reviews I've read of his own book. But with considerable and due respect to him, I think that anyone who actually studies, cares about, and practices legal ethics in general — or judicial ethics in particular — is likely to be unimpressed with his attempt to play loophole-spotting lawyer. The Code of Conduct for United States Judges isn't "fiction," nor is 28 U.S.C. § 351. And I for one am perfectly content, and indeed much prefer, to live in a society whose rules only permit judges to speak about specific pending cases — as opposed to their speaking generally about the law and the Constitution — from the bench when they're ruling on those specific pending cases.

{note2}Purists would assert that the term "self-recusal" is somewhat redundant, since "recuse" is ordinarily used only to describe a judge's action in removing himself from consideration of a matter; removal of a judge by someone other than himself is more commonly referred to as "disqualification." I justify the redundancy here because it's important to note that Justice Scalia's action was voluntary, not compulsorily imposed upon him by his fellow Justices.

{note3}United States v. Microsoft Corp., 253 F.3d 34, 107-18 (D.C. Cir. 2001). The D.C. Circuit struggled with whether Judge Jackson's improprieties also justified reversing all his findings of fact and the "liability" phase of the trial, but stopped short of that. Still, Judge Jackson had a history of trying to circumvent reversals when he got cases back on remand, and indeed had already done so, and bragged about it to the press, after an appeal of a preliminary injunction in that very case.

{note5}Id. at 555. As an example of "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases," Justice Scalia cited a "World War I espionage case against German-American defendants," Berger v. United States, 255 U.S. 22, 28-29 (1921), in which these comments of the trial judge showed a disqualifying degree of bias:

"If anybody has said anything worse about the Germans than I have I would like to know it so I can use it.... One must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty. This defendant is the kind of a man that spreads this kind of propaganda, and it has been spread until it has affected practically all the Germans in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by the pacifists in this country, who are against the United States and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such, and now when this country is at war with Germany you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty. I know a safe-blower, he is a friend of mine, who is making a good soldier in France. He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safe-blower.

{note6}505 U.S. 577, 639 (1992) (Scalia, J., dissenting). [I've corrected a typo in the spelling of this case name, per the comment below, since this post was originally published.—ed.]

{note11}There's actually another statute he missed, 28 U.S.C. § 144, but it's more or less been interpreted into a procedural trigger for § 455(a). I'll cut him some slack on that miss.

Update (Fri Feb 6, 2004): Since I wrote this piece, of course, there's been a much bigger to-do about whether Justice Scalia ought to recuse himself, or be disqualified, in a case involving Vice President Cheney because he went on a duck hunting trip with Vice President Cheney last fall. Some of the same legal issues, statutes, and caselaw are involved in that dispute, but I'll not try to delve into it here. I do feel obliged to make a rather important point about Newdow and Canon 3A(6), however, that I didn't make in the original post: As a technical matter, the Code of Conduct for United States Judges, by its terms, does not apply to the Justices of the Supreme Court — they're deliberately excluded from the list of judicial officers covered by the Code: "United States Circuit Judges, District Judges, Court of International Trade Judges, Court of Federal Claims Judges, Bankruptcy Judges, and Magistrate Judges." Consistent with this and with long-standing Supreme Court practice, Justice Scalia's decisions whether to recuse himself in Newdow and the case involving Vice President Cheney were his alone to make; and I continue to believe that his decision in Newdow is explained by his recognition that he'd run afoul of Canon 3A(6), and that he felt himself ethically bound by that Canon even though he's not technically bound by the Code in which it appears.

Monday, October 20, 2003

Gregg Easterbrook is a senior editor at The New Republic, whose online edition sponsors his new blog, too-cutely named Easterblogg. ("Gregg" with two g's at the end, ya get it — huh? huh?) Easterbrook has a quick mind and broad tastes that include professional football in all its gory glory, so until now he's also contributed a weekly column to ESPN's website, writing as the "Tuesday Morning Quarterback." I'd link you to one of his TMQ columns, except — it seems that Michael Eisner and his minions have zapped them all. Yeah, it appears that they've fired Easterbrook — and not just fired him, they've disappeared him — or at least his name from the masthead and all traces of his columns from the ESPN website! Nacht und nebel!

Why? Well, they didn't say, but one presumes it's because of this blogpost he wrote about Miramax's new picture, "Kill Bill."

Easterbrook expressed a pretty pointed opinion that that "Kill Bill" stinks, that its director Quentin Tarantino stinks, and that Miramax stinks for sponsoring Tarantino's mindless über-violence, and that Harvey Weinstein and Michael Eisner — respectively the CEOs of Miramax and its corporate parent, The Walt Disney Company — stink for letting Miramax sponsor Tarantino's über-violence.

Easterbrook didn't just pan the movie, its director, its studio, the studio's corporate parent, and their respective CEOs, though — he managed at the same time to point out that (gasp) Weinstein and Eisner are both Jewish:

Yes, there are plenty of Christian and other Hollywood executives who worship money above all else, promoting for profit the adulation of violence. Does that make it right for Jewish executives to worship money above all else, by promoting for profit the adulation of violence? Recent European history alone ought to cause Jewish executives to experience second thoughts about glorifying the killing of the helpless as a fun lifestyle choice.

With these sentences, Easterbrook has generated The Perfect Scandal for Our Times™! I can tell it's perfect because when I try to figure out which of my regular archival categories to select for this post, I could pick just about any of them except "Texas Redistricting"!

Oh, glorious potential for mixed metaphors! Armchair quarterback, political pundit, and corporate blogger — slain on the swift sword of politico-religious (or religio-political?) correctness, his prompt and conspicuous apology notwithstanding. We know Easterbrook must be guilty and evil because the Los Angeles Timestells us if he walks like an anti-Semite, talks like an anti-Semite, and quacks like an anti-Semite, Disney can fire his ducktailed ass from its ESPN subsidiary's website in the proverbial Los Angeles minute (which is really shorter than a New York minute, except that it's done in film-school slow-motion so you can see the blood splatters more clearly).

Andrew Sullivan bemoans this as an assault on blogging, and links an online petition protesting Easterbrook's firing from ESPN. Along with some other far more notable bloggers, I duly signed the petition — I enjoyed reading the TMQ column, especially the bits about the NFL cheerleaders. But I'm having second thoughts about having done so — ummm, about signing the petition, that is (not reading about NFL cheerleaders). In fact, I may start a petition to force the petiononline.com folks to institute a delete feature!

Easterbrook's apology suggests that in another medium — one less instantaneous than blogging-without-a-net (no editors! it's the nature of the beast!) — he'd have managed to avoid any anti-Semitic clichés:

Where I failed most is in the two sentences about adoration of money. I noted that many Christian executives adore money above all else, and in the 20-minute reality of blog composition, that seemed to me, writing it, fairness and fair spreading of blame. But accusing a Christian of adoring money above all else does not engage any history of ugly stereotypes. Accuse a Jewish person of this and you invoke a thousand years of stereotypes about that which Jews have specific historical reasons to fear. What I wrote here was simply wrong, and for being wrong, I apologize.

Eh. I've seen worse. In the days when I, a Texas gentile, was a partner in a largely Jewish New York-based law firm, I've probably said worse myself (although the Texas-New York culture clash was a far bigger problem than the gentile-Jewish one).

Mr. Easterbrook, if I may play Wednesday Morning Quarterback (although it's a Monday today): Do you think it's an accident that Disney keeps Miramax as a separate brand so it can channel its sex-and-violence content to the viewing public of the world without tarnishing Mickey's image? We all know better.

But you don't tug on Superman's cape, and you don't dis the Mouse{*} — not if you're eating at the Mouse's training table, anyway. Mike Eisner and Harvey Weinstein are indeed loathsome individuals, but that has nothing to do with their being Jewish, or religious, or even male — their greed and their pandering to feed it has entirely to do with their being human, and by injecting religion into an area where it doesn't really fit, you gave them an excuse to whack you.

Which, of course, is their absolute commercial right to do, First Amendment notwithstanding (and having absolutely nothing to do with this). I don't doubt that leading blogospheric expressers of Jewish outrage like Roger Simon (here, here, and here) and Meryl Yourish (here, here, here, here, and here) were sincere in feeling offended, and are now sincere in their regret that ESPN has knocked TMQ out of its lineup. (Prof. Reynolds, of course, has a wide variety of pertinent links on InstaPundit, along with some commentary.) But one would have to be naïve indeed to think that to the powers-that-be at Disney, the religious issue was anything more than a pretext for what was actually a reaction to Easterbrook-as-film-critic. It doesn't have to be about Eisner personally. No, Easterbrook had it right the first time, if he'd just omitted the religious references — it's all about profits. The Mouse is ruthless.

So, TMQ, you screwed up; you threw a pick into double coverage, they ran it back for a score to win the Super Bowl. Yes, blogging is like speaking into an open mike on national television, and you of course knew that — but then again, that excitement, that danger was part of the attraction that caused you to chose a career that has you walking on tightropes, dealing with hot topics like politics and race and religion and NFL cheerleaders with or without breast implants. If you'd wanted dull and secure, you'd be a judge like the Official Easter-Brother.

So twist your jock back into position, locate your helmet, and trot off the field with dignity, sir. Disney is damn near boycott-proof, Eisner and Weinstein will get another bajillion despite running the stock price into the ground; tain't nuthin' to be done with, to, or about them.

You still have your day job. And Mr. Easterbrook, you ought to find a better outlet for Tuesday Morning Quarterback. TNR probably isn't the place. But then, neither was the ESPN website. "Go.com"? How very Nineties; how entirely pre-blogospheric. Stop apologizing (not to say you shouldn't have, but just that you've apologized enough already), shrug off the hit, and play the free agent market, man!

----------------

{*} "Don't dis the Mouse" is a much politer version of the conventional wisdom supposedly imparted to all employees of The Walt Disney Company's famous theme parks, when they're warned that their public and private conduct must be above reproach. And while looking for the corporate website for Disney — not the "view the latest trailer/play the latest game/here's our flash animation and oh by the way we gave up and hired HP to run our website for us" stuff — I found one lovely page with a lovely quote from the company founder, whose spin-in-his-grave rate doubtless gained another 1000 rpm when "Kill Bill" came out:

"I only hope that we don't lose sight of one thing — that it was all started by a mouse." - Walt Disney

Sunday, October 19, 2003

Farewell to Presto

I was saddened to read that former Texas governor Preston E. Smith passed away yesterday. Inevitably nicknamed "Presto," Smith followed the vastly more charismatic and famous John Connally as the state's chief executive, and preceded the equally dull Dolph Briscoe. Although Smith lived most of his life in Lubbock, he grew up, and graduated from high school, in my hometown of Lamesa, 60 miles south of Lubbock. As a result, I got to march with my high school band, the mighty Golden Tornadoes, in his second inaugural parade in 1971 when I was a high school freshman. I can still remember him greeting and thanking us on the Capitol grounds, dressed in a gleaming white Stetson with his trademark polka-dotted bow tie peaking out from beneath his raincoat. (Oddly, he wore a "regular" tie in his official portrait — a pity, that.) I remember being vaguely disappointed that he wasn't taller.

Preston Smith wasn't a bad governor, although his political career ended badly with him placing third in the Democratic primary in 1972 after he'd been on the fringes of the Sharpstown scandal. But memories of Presto have faded rapidly for most Texans old enough to remember him at all. Texans seem to expect that office to be held by someone with a big personality — like Connally, Ann Richards, or Dubya.

Sunday, October 12, 2003

The Chronicle's error notwithstanding, Bill White's former law firm is not a "defense firm"

John William's profile in the Houston Chronicle of mayoral candidate Bill White is generally fair and very flattering overall. However, there was one laugh-out-loud misrepresentation in it:

White joined a young law firm in Houston called Susman Godfrey, a civil litigation and defense firm that became one of the highest-paying in the country.

I am a huge fan of the Susman Godfrey firm and its lawyers — enough so that I seriously considered accepting an offer to work there myself in 1986 — but by no stretch of the imagination would any knowledgeable observer pick the phrase "defense firm" as a short-hand description of it.

With his grades and law review experience from Texas Law School, when Bill White graduated in 1979, any law firm in the country would have been delighted to hire him. He made a very unconventional choice, however, that took a fair amount of personal courage: White hooked up with Steve Susman, who'd recently left a partnership at Fulbright & Jaworski to join Mandell & Wright, a much smaller firm barely known outside its traditional admiralty & maritime practice area. Susman was branching out into representing plaintiffs in contingent fee business litigation, which wasn't at all a good fit for F&J — which was and still is a genuine "defense firm." Susman and a few other very talented lawyers who'd either left F&J or joined him shortly thereafter had been successful in the so-called "corrugated paper antitrust litigation," and they were taking up another high-profile antitrust case arising out of the award of the Houston cable TV franchises when White joined them. Relatively soon thereafter in the early 1980s, they left the "marriage of convenience" at Mandell & Wright to start what became "Susman, Godfrey & McGowan"; it morphed into just "Susman Godfrey" when co-founder Gary McGowan left to pursue a mostly-mediation practice sometime in the mid-1980s, if I recall. The other name partner, Lee Godfrey, had been a top-flight defense lawyer at Austin's blue-chip Graves, Dougherty, Hearon, Moody & Garwood — and in fact, my experience watching and carrying Lee's briefcase during a 1978 summer job at that firm confirmed my own passion to become a trial lawyer.

In addition to White, Susman Godfrey rapidly attracted several other top graduates from Texas and other first-rate law schools, including many lawyers coming out of judicial clerkships. They pioneered the "business litigation boutique" business model, and they've almost certainly done better at it than any firm in the state. The basis for the business model is to do enough hourly rate business — which typically is "defense work," usually for corporate clients (including many Fortune 100 and 500 companies) — to ensure that no one goes hungry and the lights and phones stay on. But a substantial majority of the firm's lawyers' time has been invested in contingent fee cases — usually business litigation rather than personal injury or consumer cases, but sometimes those too — in which the firm can leverage its talent and reputation into mega-payoffs. The firm has tried a lot of cases, and like all real "trial lawyers" that means they've lost some high profile cases as well. In the last two decades I've had cases both with and against them, and they are a very formidable bunch. The firm proudly announces on its website that, "In a little more than a decade, we have achieved for plaintiffs in over 75 lawsuits settlements in excess of $1 million, representing total recoveries of over $2.2 billion."

But they're not what I would ever describe as a "defense firm," and indeed, the mindset and attitudes that lawyers typically think of when they use that specific term are things that the two name partners, and the many exceptional younger lawyers they've attracted to work with them, have consciously left behind them. Susman Godfrey has made Bill White and its other partners rich, and I don't begrudge them a dime of it. But it hasn't been hourly rate "defense work" that's done that — it's been the big contingent fee payoffs.

I'm not sure if White and his campaign staff are responsible for the Chronicle's description. It could well be that they described the firm as one that regularly represents both plaintiffs and defendants, or that does both "plaintiff and defense work," and those descriptions would be true. And White's no John Edwards — it would be misleading to portray White or his former partners as being "plaintiffs' personal injury lawyers," because while they've handled some of those cases, their deliberate focus has always been on commercial litigation, meaning lawsuits among businesses, or at least arising out of business transactions rather than out of accidents. Maybe White's trying to avoid that impression, and I could understand why he might: it doesn't fit the "centrist" role he's trying to grab, and would certainly scare off a lot of potential conservative voters from both political parties.

But the Chronicle is just wrong to call Susman Godfrey a "defense firm." If absolutely forced to make a binary choice — is it a "plaintiffs' firm" or a "defendants' firm" — any knowledgeable observer, and almost certainly its own lawyers as well, would tell you that it's a "plaintiffs' firm."

Melancholy (football) baby

I'll never root for Oklahoma University's football team, but I can certainly appreciate talent — in the athletes and the coaches — when I see it. The Sooners beat the 'Horns like the proverbial redheaded stepchild this weekend, and the 65-13 score gives an entirely misleading impression: the game was not that close. My congrats to the OU coaches, team, and fans. And then the Titans whipped the Texans, albeit by normal instead of cosmic proportions; I still vaguely root for the Titans because of their Oilers history, and I wasn't surprised by the result, but it still left me grumbling.

The dog — who has never gotten the concept that when she and I are the only living things in the room, I might scream with rage without being enraged at her, poor thing — probably suffered more than I did, but we'll both get over it, I 'spect.

Friday, October 10, 2003

Cheney to Base, come in please

Vice President Dick Cheney lashed out on Friday at critics of the Bush administration's Iraq policy, ridiculing their arguments against the war as naïve and dangerous in a speech that was a culmination of a campaign by the White House to regain support for the postwar effort.

Cheney was speaking to the Heritage Foundation — a sympathetic audience, no doubt intended to be a conduit for his remarks to promulgate throughout the core of the Administration's supporters. The Veep was helping "prop up the base," and I'm glad to see that effort being made.

The vice president dared critics to refute the assessment that Iraq without Mr. Hussein was better off than before. "There would still be active terror camps in Iraq," he said, "the regime would still be allowing terrorist leaders into the country, and this ally of terrorists would still have a hidden biological weapons program, capable of producing deadly agents on short notice."

Ignoring Mr. Hussein's appetite for illicit weapons would have only courted disaster, he insisted. "Weakness and drift and vacillation in the face of danger invite attacks," he said. "Strength and resolve and decisive action defeat attacks before they can arrive on our soil."

Mr. Cheney said it was dangerous to rely too heavily on reaching international consensus before acting against terrorists, saying that approach "amounts to a policy of doing exactly nothing."

This isn't exactly new, but it does bear repeating.

What I'd personally like to see added into the mix — and perhaps it was there, but just not included in what the Times chose to quote — would be more emphasis on the foreseeable benefits to the US and to the civilized (non-terroristic) world from a democratic and free Iraq. During the last half of the twentieth century, the only free and democratic state in the Middle East has been Israel — and for obvious reasons, its ability to exercise moral suasion or influence or political leadership among Arab or other Islamic states has been nil. To the extent we stay the course and succeed in building a democratic Iraq, however, it will become a "force multiplier," an agent of genuine revolution that we could never expect from the Saudis or the Egyptians. There are legitimate grounds for optimism and excitement in Iraq — even if we're not yet to the proverbial "end of the beginning," much less the "beginning of the end" there.

It's a pity that the "Angry Left" — the same folks whose predecessors joined JFK's Peace Corps in droves in another era of strife and optimism — isn't likely to be persuaded to this viewpoint. They're too consumed by their hatred of Dubya to see real prospects for improvement; they'd rather be "right" and see a "quagmire." Just think what constructive purposes their energies could be harnessed to — if they were simply willing to do their work under American and Iraqi flags instead of insisting upon a hand-over to a laughably ineffective UN.

But even beyond the core that Cheney was addressing, there is a substantial thoughtful portion of the American public who're not yet self-blinded by hatred of Dubya or reflexive anti-Americanism. For them to become inspired, we probably will need to at least reach the "end of the beginning" — a point where some tangible rewards begin to show up, a point where good news outshouts the latest body-count. Until that day, the core has to stay faithful. So I'm glad for Cheney's speech, and I'm glad for a President who doesn't let focus groups define our national policy.

Thursday, October 09, 2003

Crackpot payoff update

Tim Fleck of the Houston Press has this story about Brenda Flores and the "two Bill Whites" scam. Fleck's story contains a few more colorful details about the personalities involved — with the conspicuous exception of Janie Reyes, the Metro board member who also accompanied the real Bill White and Congressman Chris Bell on their visit to Reyes to persuade her to abandon her scheme. Maybe she's just not talking, or maybe she hasn't been asked, but I'd be curious to hear her take on how she came to be involved, why she was at the meeting, and what happened. According to Flick's story,

Flores claimed the initial plan she worked out with [Sylvester Turner campaign consultant Doris] Hubbard was to recruit a white male to run for mayor who was not a supporter of candidate White, had the same name and did not have a criminal record. She says that even with nearly 90 Bill Whites in the Houston area, it turned out to be an impossible task.

There's a suggestion that Flores had begun having second thoughts even before the White-Bell-Reyes visit to her home:

As the deadline approached, Flores began to regret her involvement and claims she told Hubbard she would not produce Bogus Bill's signed filing papers.

Flores says Hubbard called her house several times, demanding that "the papers" be turned over to the Turner campaign. A recording of one of the calls was murky, and The Insider could not confirm that it was the voice of Hubbard.

In her 90-minute meeting with White and his friends, Flores promised not to go through with the scheme. She claimed she feared for the safety of herself and her children if she did not return the money Hubbard allegedly gave her.

The Houston Chronicle also has an update saying that Harris County DA Chuck Rosenthal has started an investigation into the matter, but is unlikely to take any action until after the November 4th mayoral election.

Both Charles Kuffner and Kevin Whited have discussions up about this story (here and here), including an interesting question Kuff posed for Kevin in comments: "[G]iven that White's campaign has a lot of self-funding, does your opinion change if the funds he used to cut her a check came out of his own money?" Kevin's response, in part, was that he could understand if White said something like, "Because campaign finance laws are what they are, I couldn't just write her a personal check — then someone might call it a payoff. So I wrote a check from campaign funds, some of which I've given my own campaign." My first reaction was just the opposite — that if White's motivation was charity, he ought to have written a personal check; reimbursing (indeed, over-reimbursing) Flores for her undocumented "expenses" incurred in a scheme to torpedo his own campaign is hardly a legitimate campaign expense! He could have made public disclosure of a personal contribution, and his explanation would have been more coherent and self-consistent.

But it still wouldn't have been convincing. Politics aside, I believe Bill White is a nice guy and a sincere populist. But you would have to be an absolute saint to not only forgive Flores' scheming but then become her private savior, benefactor, and financier. It just doesn't compute. It looks like hush money — and yet, why is it the White campaign that would want to cover this up, instead of the Turner campaign?

Kevin explains why he finds the $5k payoff disturbing:

The reason this is an issue of interest is that Bill White claims to be a financial wiz. In the debate last night, he tried to show up Orlando Sanchez by pointing out that Sanchez couldn't name the city's bond rating, but he could; he claimed that's a crucial piece of knowledge for a mayoral candidate (he's wrong on that last, by the way, but that's another topic). But it undermines Mr. White's credibility on financial matters when he just hands over $5,000 of campaign donations to an unstable, muckraking loon! That's not my idea of fiscal responsibility.

I agree with this point. But I also remain troubled by the point raised, incredibly enough, by Turner during the debate: If all the facts are on the table, then there's no good reason why White, Bell, and Reyes shouldn't have referred Flores to the police — or indeed, gone to the police themselves! Maybe Turner has the Gary Hart bold-foolish gene and is guilty as sin while shamelessly still taunting White about this. I just dunno.

But the Bill White I thought I knew — the one I worked for when he was editor-in-chief of the Texas Law Review in 1978-1979, who graduated near or at the top of his class and then went on to be a fabulously successful trial lawyer, businessman, and political appointee — just isn't stupid enough to have done what he seems to have done for the skimpy reasons he claims to have been motivated by. So I still have a feeling that something just isn't right here, and that there's more to the story than we know yet.

Wednesday, October 08, 2003

Imaginations run wild

In a story posted today at 6:11pm, the San Antonio Express News quotes a Democratic Congressman as "decrying the apparent agreement" just reached this afternoon on redistricting by Texas Republicans — "even before it was announced":

“The latest redistricting map is an affront to minorities and clearly dilutes the voting strength of Hispanics in Texas,” said U.S. Rep. Ciro Rodriguez, D-San Antonio.

"As Republicans cynically seek to destroy the districts of Anglo Democrats, itself an attack on the political voice of minorities, Tom DeLay and his operatives in Austin gut the voting power of Hispanics in South Texas. Lt. Gov. Dewhurst is obviously going back on his word not to undermine minority opportunity districts.

“We have come too far to stand by while Republicans in Austin and Washington work to sideline the voice of Hispanics as they work day and night to gerrymander us into oblivion,” Rodriguez added. “They split communities and create unwieldy districts with greatly diminished Hispanic voting power, especially in the border districts of South Texas. This is retrogression, plain and simple.”

But the Houston Chronicle gives this report:

Sen. Jane Nelson, R-Flower Mound, said the deal was complete except for checking the proposed map with a computer program for potential problems such as violations of the Federal Voting Rights Act or a Congressional district with too few people in it. The computer check, which began around 5 p.m., would take about two hours to complete, Nelson said.

So what do you call a Congressman who purports to be making nuanced factual judgments about a Congressional district map that he can't possibly have even seen, much less studied at length?

My imagination fails me.

I'm quite willing to make a large bet, however, that when we do get to see the map, we'll find that Congressman Rodriguez himself hasn't been "gerrymandered into oblivion." Any takers?

According to another story in the Express-News, state senator Leticia Van de Putte claims that an unnamed Republican state senator "told Van de Putte that if Democratic senators acted 'like Mexicans, you will be treated like Mexicans.'" But two other Dem senators who Van de Putte claims also were present to hear the comment — Frank Madla and Judith Zaffirini — "told the San Antonio Express-News on Tuesday that they couldn't recall the comment from any Republican colleague."

It seems Sen. Van de Putte's imagination hasn't failed her. Nor has Rep. Rodriguez' imagination failed him. That's because for the Dems, it's all about making people think it's all about race — regardless of the facts.

Still not about limbo

Monday, October 06, 2003

Animal testimony

Will Baude at Crescat Sententia (who in turn hat-tipped Jim Leitzel, who blogs Vice Squad) has blogged about a recent AP story (republished in the NYT) about a man who wants to question a parrot in court. The man's pet parrot accidentally escaped, and he thinks he's tracked down its current possessor, who's resisting the man's efforts to establish his ownership. The man believes that in court, he can prove his claim by demonstrating that this parrot, like his lost pet, can whistle the "Andy Griffith Theme."

Will's reaction is that his "tentative thought" is that one "shouldn't be allowed to demand that other people bring their parrots into court":

A parrot should be thought of less as a human being (who can be forced to testify) than as a tape recorder, who probably can't in this circumstance. After all, suppose I had my video camera stolen, and then just saw you walking down the street with a camera that looked a lot like mine. Without some further evidence or probable cause or something surely I couldn't just drag you aside and make you play the tape inside for me to see if it was mine, could I?

I'm reminded of an occasion several years ago when I was called to jury duty in one of Harris County's Justice of the Peace (small claims) courts. While waiting in the courtroom with the others who'd been summoned as prospective jurors that day, I observed a bench trial in another case in which the plaintiff was seeking to replevy (recover possession of) a pet that he claimed had been stolen — in that case, an adolescent chimpanzee. The defendant claimed that he'd bought the chimp from someone who'd placed a classified newspaper advertisement, so in addition to disputing the plaintiff's original ownership, the defendant claimed to be a "bona fide purchaser for value" whose good-faith purchase extinguished whatever rights the original owner may have had to the property (if not the plaintiff's rights against the thief/seller).

The plaintiff had served the defendant with a subpoena duces tecum compelling not only the defendant's own appearance at the trial, but also compelling the defendant to bring the chimp to court. The defendant was seated at his counsel table with the chimp in his arms while the plaintiff testified. On cross-examination, the defendant's lawyer violated one of the traditional rules of cross-examination by asking an open-ended question: "So, Mr. Smith! How can you prove that the chimp was yours to begin with?"

At which point, the plaintiff looked at the chimp, smiled, and said in a very ordinary tone of voice, "C'mere, Bobo!"

With a shriek of delight, the chimp instantly pried himself free of the defendant's arms, leapt over the counsel table, raced across the room, bounded over the railing in front of the witness chair, and flung himself into the plaintiff's arms — where the two of them hugged fiercely and began comforting and "grooming" each other while the entire courtroom sat in stunned silence.

The defense lawyer eventually stammered out, "Objection!"

"What's the nature of your objection, counselor?" asked the judge.

"Umm, I object to ... ummm ... the nontestimonial speech of the chimp as being hearsay since he's not subject to meaningful cross-examination!" At that point, despite ourselves, the judge, I, and every other attorney in the courtroom burst into laughter.

"Overruled!" barked the judge.

The plaintiff then called the defendant to the stand as an adverse (hostile) witness, and proceeded to elicit testimony that the defendant had never gotten the so-called "seller's" name or address; that the seller had used a pager, so the defendant didn't even have a home phone number for him; that the seller neither had nor gave a written bill of sale or other pedigree/title papers; that the seller had no veterinary records for the chimp; that the seller had no "chimp paraphernalia" (clothes, toys, grooming equipment, cage, etc.) to sell along with the chimp; that the seller had insisted on cash; and that the seller had insisted on the handover taking place at a remote roadside rest stop halfway between two towns.

The court wisely ruled that the plaintiff had sufficiently established — via "nontestimonial conduct from the chipanzee" — his prior ownership, and moreover, that the circumstances of the purchase were sufficiently shady that it should have put the defendant on notice that he might be buying a "hot chimp" — meaning that he couldn't qualify as a "bona fide purchaser" who'd given value for the chimp "in good faith."

"Judgment for the plaintiff!" announced the judge, "You and Bobo are free to go!" Whereupon Bobo and his owner left the courtroom walking hand-in-hand — and no one present doubted that justice had been done.

As for the parrot: I believe most judges are going to uphold the subpoena duces tecum directing the current custodian to bring the bird to court. The general standard for whether a plaintiff who's stated a plausible claim can get such compulsory discovery is whether his request is "reasonably calculated to lead to the discovery of admissible evidence." You don't have to show a probability that in fact the parrot will whistle the "Andy Griffith Theme," just that you have a logical, coherent basis for believing that it might.

As for Will's camcorder hypothetical, when Will shows up in court to argue his motion to quash the subpoena duces tecum demanding that he appear in court and bring his camcorder and tapes for examination, the judge is going to start by asking the opposing party, "What basis do you have to think that this camcorder you claim to have seen is your camcorder? Where's your sales receipt, your documentation showing the model and serial number? What basis do you have to connect Mr. Baude to your alleged theft?" If from the answers it's clear that the plaintiff is just speculating — on the proverbial "fishing trip," fishing around for evidence without any specific basis for believing that admissible evidence will turn up — Will can probably get the subpoena quashed. But the judge is also likely to say, "So, I understand why you don't want the plaintiff, or me for that matter, scanning through your videotapes. But what's your objection to letting me look at the serial number on your camcorder, Mr. Baude?" I suspect that serial number will get compared — and if it happens to have been filed off, then the tape may get viewed too.

Appellate courts always say that rulings like this are "committed to the sound discretion of the trial judge." And part of that is a recognition that trial judges, especially after they've practiced law a while and then been on the bench a while, have good BS detectors. If a story stinks, if the details don't add up, if someone's flinching and stuttering and downcast eyes suggest a guilty conscience rather than a normal "case of nerves" at having to show up in court, judges are permitted to factor those details into their decisions. They're permitted, and expected, to balance hardships, to weigh privacy concerns against getting to "the truth," and to do what seems fair and right in the 99.999 percent of situations in which there's no absolute and binding statute or rule or case precedent directly on point.

Now what will be really interesting is this: When the current possessor of the parrot is obliged to bring the parrot to court, will the plaintiff's lawyer be allowed to "lead his witness" by whistling the first few bars of the "Andy Griffith Theme"? Or will he be restricted to Lauren Bacall's immortal line to Humphrey Bogart in To Have and Have Not?

Mayoral debate leaves $5k crackpot payoff unclear

I was pleased that the first and third questions in tonight's televised Houston mayoral debate had to do with the Brenda Flores mystery — although I wish the questions had been more direct and pointed.

Sylvester Turner made what sounded like categorical denials that he or his campaign had anything to do with Flores. But I was left wondering whether there were some Clintonesque evasions: "We did not pay her to find another Bill White" would fit with the Chronicle's report that the cash payment was ostensibly intended to be in connection with some sort of "early voter organization" in Spring Branch. "We didn't pay her $5000" would fit with the Chronicle's report that the Turner consultant paid $2600 now, with another $2400 to be paid later. "Was the campaign authorized to give her anything? No." — that's equivalent to "someone from my campaign gave her money without my authority." However, Turner did multi-zing White by asking several times why he made a payoff instead of directing Flores' claim of "threats of retaliation" to the police.

Bill White tried to softly pound Turner, but lacked convincing answers about his own role. He insisted that "we haven't accused any other campaign," but repeated that "a plot was thwarted" and that "people should ask why there was a plot." His evasions frankly left me very disappointed: "This woman has cancer. My first instinct is to protect the vulnerable." Oh, puh-lease, Mister Bill! Does your campaign fund many other medical charities? "We protected a person who came forward with information to help voters avoid being tricked." Nuh-uh, sir, the person you paid off was the very person who by her own public admission concocted and almost executed the "plot that was thwarted"! At least according to the Chronicle account, she didn't "come forward"; instead, you got a "tip" that the plot was in the works, and you took along Congressman Chris Bell and Janie Reyes because they were supposedly "buddies" of Flores and you thought you would need their help to get her to acknowledge the plot and then to persuade her to drop it. You claim the payment you made "wasn't hush money because the plot was thwarted long before"; so if it wasn't hush money, what was it, and why was it more money than Flores had actually gotten from the Turner campaign consultant and more than she paid back?

In short, White answered none of the questions I posed in my original post.

Let me be very clear: I'm not accusing Bill White of anything dishonest, corrupt, or unethical. I'm accusing him of being foolish, of being an easy mark, of writing a check — if not for "hush money," then in his words "to put this whole thing behind us" — to someone who probably ought to be in jail herself instead of being rewarded. That was exactly the wrong thing to do. It smacks not only of bad judgment, but, frankly, panic.

I'm very disappointed. What I wanted to hear from Turner was, "Someone connected with my campaign tried to finance a dirty trick, and when I found out, I immediately fired her." What I wanted to hear from White was, "I made a stupid decision to throw money from my campaign fund at a problem — after it was solved — and I regret having done that. I lost sight of my principles and laid down with the dogs for a moment, but I'm up and I'm brushing off the fleas."

Instead — nothing but evasions.

UPDATE (Mon Oct 7 @ midnight): Here's the Chronicle's debate coverage, headlined "Alleged scheme takes center stage at debate." The story unfortunately has no new reporting on the actual facts of the Brenda Flores tale.

Sunday, October 05, 2003

Baylor 42, Colorado 30

Although I very much enjoyed a three-week stay on the campus of the University of Colorado in July 1985 for the National Session of the National Institute of Trial Advocacy, I've never been a fan of Colorado sports teams — too much trash talk for one thing. And I have two nieces and a nephew who either are or have recently been Baylor students.

So I can't help enjoying 19½-point underdog Baylor's 42-30 win over the Buffs in Waco this weekend. Baylor has had so much bad news lately, and while it's completely unfair, it's nevertheless true that negative publicity in connection with a university's sports program can affect campus morale and self-image just as powerfully, or moreso, as positive publicity. Go Bears!

Saturday, October 04, 2003

Will the real Bill White please stand up? (And explain yourself!)

The Houston Chroniclearticle is entitled "Scheme to confuse voters in mayor's race is thwarted," but that assumes voters can figure out what the scheme actually was — which, from all the press coverage so far, would be asking a lot! Neither KTRK 13 nor KHOU 11 add significantly to the Chron's story (the former's just running an AP feed anyway, which has also been picked up by the Fort Worth Star-Telegram and the Washington Times).

What seems to be clear and undisputed is that a woman named Brenda Flores — variously described as a city-hall gadfly, an activist, and a crackpot — who, among other things, runs a website called HouSnitch.com, located someone named "William White" from a Houston low-income housing project, Acres Homes, and persuaded him to sign papers she provided to enter him into the Houston mayoral race. Her means of persuasion was a sham transaction in which she gave him some $1200 in cash for a straw hat, perhaps along with some other perqs like a steak dinner and travel cash to lie low. Her original intention was apparently to file those papers before the registration deadline for the mayor's race and thus inject confusion into the voters' minds between this ersatz candidate and the "real" (that is, high-profile you-know-him-from-his-TV-ads) candidate Bill White.

It also appears to be agreed by all involved that she had a change of heart and never filed the signed papers, having been persuaded not to during a visit to her home by the real-candidate Bill White, Congressman Chris Bell (D-Houston), and Metro board member Janie Reyes just before the filing deadline.

Finally, it appears that two days after the registration deadline, real-candidate White wrote Ms. Flores a check for $5000.

Beyond those facts — odd as they are themselves — everything else seems to be in dispute. According to an account posted by someone named George Strong on his website — the reliability of which I certainly do not vouch for — Flores claims that the money she paid the ersatz William White originated as part of a $2600 cash payment to her (with another $2400 promised for later) by a campaign consultant working for rival Sylvester Turner's campaign, one Doris Hubbard. But Hubbard claims the payment was for some sort of "early voting" organizational efforts in Spring Branch where Ms. Flores lives, not for campaign dirty tricks. Turner, meanwhile, is denying any connection, but insinuates that real-candidate White has given in to extortion.

Strong's website purports to quote two fairly long "statements" of some sort that appear to be from real-candidate White and from Congressman Bell. Again, I have no clue whether they're authentic; they're certainly amusing, and make Ms. Flores look like even more of a kook than does her own website — which is now filled with acknowledgements that she's been involved in dirty politics on someone's behalf.

According to the Chronicle, real-candidate White acknowledges payment of the $5k, but denies that it was a quid-pro-quo for Flores not filing the ersatz William White's candidacy papers; instead, he says, Ms. Flores had contacted Congressman Bell several times to say she "had been threatened" and feared retaliation if she didn't repay the money she'd gotten from the Turner campaign consultant (presumably Hubbard). The Chron quotes White as saying, "So, I relied upon the judgment of an experienced and credible person," presumably meaning Bell, as to whether Ms. Flores really felt threatened. Ms. Flores claims to have used the $5000 check to repay, via one Dennis Kaim, the $2600 cash she'd received from the Turner campaign — which leaves one wondering where the balance of that check is supposed to go!

Charles Kuffner calls it "the strangest story I've seen all year," and Kevin Whited opines that "any politician who finds himself drawn into schemes that involve writing checks to people like Ms. Flores is a fool." Stephen Bates also is blogging about the story, but admits that he's confused too. For my money, this local soap opera certainly makes the "Mrs. Wilson affair" seem cut and dried by contrast.

From what's presently known or reasonably inferable, it appears that the bad guy (by imputation from his consultant's actions, even if it was without his knowledge) is Turner. It looks like his campaign was approached by a crackpot with a scheme for spreading some mayhem and decided to throw some seed money at it, hoping to maintain plausible deniability. Personally, I frankly don't much care if that's true or not — it'd be a cold day in hell before Turner would get my vote for dogcatcher, and I think he'll end up running third in the election, leaving Sanchez and White in a runoff whether he's tarred with this attempted hoax or not.

But I am very, very troubled by the still-open questions regarding real-candidate White's participation in this. If the memo purportedly dictated by him, as it appears on Strong's website, is genuine, then it looks as if he responded to a tipoff by patiently talking Ms. Flores out of her dirty trick before it was sprung — appealing to her as a good Democrat, stressing his own campaign talking points, reasoning together with her — which would be fine, even admirable, on his part.

But why the money, Bill? "Congressman Bell told me to" ain't gonna cut it as an adequate explanation, and indeed tends to make you look worse!

If you were the target of this crackpot's scheme, why would you feel obliged to get her off the hook with the Turner campaign consultant?

Why wouldn't you just tell her to go to the police if she was being threatened? Or why didn't you go to the police?

And why did you give her more than — indeed, almost twice as much as — she claims to have ever gotten from the Turner campaign consultant, or to have paid back? Were you just being casual — sloppy — with cash?

Were you buying silence? And if so, why? If you're the victim of a dirty trick, why not expose the trickster (or her financiers, anyway)?

Even if you felt sorry for her personally, do you think making a donation to her in her personal capacity was a proper use of campaign funds?

As I've posted in comments on various other websites and mentioned here as well, I know Bill White personally: He was a year ahead of me at Texas Law School and I worked for him when he was editor-in-chief of the Texas Law Review. From that experience, I can vouch that he is brilliant and hardworking. I have many friends among his former law-practice colleagues at Susman Godfrey. And I've never had any reason to doubt either his honesty or his judgment.

For all of those reasons, I'm withholding judgment on this strange story. But Bill — you got some more 'splainin' to do if you want my vote, my friend! I'm hoping that there are key facts that are as yet unrevealed but that will make this all make more sense, and make your part in it, in particular, more understandable. I'm hoping that because at best right now, this looks like a case of abysmal judgment on your part.

Maybe Monday night's televised mayoral debate will shed some light. This weird story has certainly upped my own incentive to watch it!

Texas 24, Kansas State 20

The 'Horns looked pretty good this afternoon against the first top-flight team they've faced since Arkansas. They showed some poise to come from behind in the fourth quarter, although it looked like they were losing as many of the matchups in the trenches as they were winning. Freshman QB Vince Young is just amazing to watch — and he appears to have ankles made of indestructable rubber.

One has to hope this win will be a confidence builder, because they're going to need to be confident and at their very best against OU.

Friday, October 03, 2003

A struggle of wills, not of power

My liberal arts college education at Sodom-on-the-Colorado (UT-Austin) in the late 1970s made me a skeptic. It almost went further: I barely resisted becoming an absolute relativist, the sort of person who could argue, "Well, ya know, Sadaam had a point about ...." If I'd given in to that, I'd be a much more dangerous person now, because the education I then received at law school turned me into a much better advocate for any given position.

Skepticism makes me ask myself, however, whether I'm missing something important when I read an op-ed that just seems to me to nail some issue or another. When I find myself saying "Exactly!" two or three times per paragraph, afterwards I think, "Was this guy really that right? Could anybody be? Can this be that simple? What am I missing here?"

That's how I felt, for instance, after reading Victor Davis Hanson's new article in the National Review Online immodestly entitled "What's it All About? Playing High-Stakes Poker Like Never Before." Hanson's elegant and clear writing just electrifies me, and I think to myself, "How can anyone read this and not instantly recognize its truth?" Commenting on the ongoing skirmishing in Iraq and its significance in the larger War on Terror, Hanson writes:

Our enemies fathom fully — if American pundits and professors cannot — the Western way of war, the lethality of which makes conventional opposition to an American military force on the field of battle tantamount to suicide. Thus the terrorists grant the success of U.S. efforts in a Panama, Serbia, Kuwait, and Iraq, but prefer to look instead to the messes of the last twenty years in Iran, Beirut, Mogadishu, and Haiti, concluding that there are still other ways to stifle the Americans. In other words, they see the war not in terms of power — ours is far greater — but of will, as a struggle in which we, for a variety of reasons, will not bring to bear all the resources that we can.

(Emphasis by Beldar.) I genuinely fail to understand how anyone can fail to understand this. And if you understand it, how can you fail to take the next very small step — understanding what it means about what we must do in the future?

So here we have the stakes in this last, big hand of Middle East poker. Our enemies are betting that our very freedom, affluence, raucous democratic politics, and shoot-from-the hip media will still prove true to form and thus, sooner or later, we will quit — especially as an election nears and the memory of 3,000 incinerated Americans fades.

In contrast, Mr. Bush's hunch is that the tragedy of September changed us all, and his own resoluteness will prove the better hand. In other words, as polls drop and sunshine supporters fold, he senses that America — and with it civilization — will still win, and in a very big way, thus ending for good this awful contest of the last quarter-century.

Again, this seems to me so obvious, so doubtlessly true, that I can't for the life of me work up a healthy case of skepticism.

During the active-combat fighting in Iraq this spring, as I was driving my two youngest kids to school one morning, we were talking about the news, and my son Adam (age 10) asked me, "Dad, how do you know that Sadaam is bad?"

And I said, "Well, Adam, for one thing, there's the way he treats people who disagree with him. Sometimes he will take the whole family of a man who opposes him, and fly them up high in a helicopter, and then dangle the children by their feet out of the doorway, one at a time, and then drop them so that they fall."

I stopped, because I could see that Adam had gone pale. He was obviously contemplating what it would be like to be in that helicopter. He could suddenly imagine his little sister, who he fusses and fights with constantly, being dangled, and then dropped. "Daddy," he said softly, "that is very mean. I understand now why we're fighting him."

It's that simple. Any ten-year-old can understand it. So why can't a college professor? Why can't a senator?

When someone says to me, "We should pull out of Iraq and turn it over to the UN," for a moment I stand there gape-mouthed, my head tilted to one side, and my eyes unblinking. I have to resist the urge to grab this person by the shoulders and shake him vigorously, shouting "Wake up! Wake up, you fool!" I have to repress fantasies of putting this person into the reclining chair from A Clockwork Orange, complete with eyelid-restraints, and playing for him over and over the movies of the jets crashing into the World Trade Center, the innocent civilians jumping, the buildings falling from the sky, the new widows standing on street-corners with photocopied "Have you seen my husband?" leaflets, the paramedics standing around with nothing to do because there were so few merely hurt and wounded. I'd intercut those with scenes of mass graves in Iraq. "Do you get it yet? Huh? Do you get it?" I'd scream at my interrogator. "They want to kill you. You can't talk them out of it. They will laugh at your foolishness while they torture your children, while they feed them feet-first into the limb-chopping machine. Do you get it yet? Wake up!"

The way we would lose the struggle of wills would be by allowing ourselves to sink back into the false innocence and complacency that predated 9/11. This central truth seems to me so blindingly obvious, so shatteringly simple, that I have trouble concealing my disgust with anyone who manages to delude himself into forgetting it.

I simply have no more skepticism on this point; I cannot see it in shades of gray.

Thursday, October 02, 2003

Even for those who weren't already convinced by Lawrence Walsh's performance on Iran-Contra, the Kenneth Starr saga during Monicagate was pretty much the last nail in the coffin for the post-Watergate federal law passed authorizing "independent counsel" for cases deemed inappropriate for the Justice Department to handle through normal channels. When it expired in 1999, that law was not much lamented, as evidenced by contemporaneous stories run by CNN and WaPo. Senator Joe Lieberman was an exception then — so it's no surprise that in response to the Mrs. Wilson Affair, he's just proposed reinstating the independent counsel law with some modifications intended to address the main criticisms of the prior statute.

"Chatterbox" Timothy Noah of Slate reacted to this proposal with a pithy reminder of those criticisms — first, that by "giving prosecutors unlimited funds, the law encouraged investigations that never ended, running up huge legal bills for targets who rarely ended up getting indicted, much less convicted"; and second, that the law "failed to insulate investigations from politics." I entirely agree that Sen. Lieberman's proposal is a very bad idea. And in any event there's no possibility that it could zip through Congress and be signed by the President with the same speed as the "Do Not Call List" corrective legislation; this affair, while not a genuine "crisis," just can't wait.

When the independent counsel law expired, it was replaced instead with a set of Justice Department regulations effective July 1, 1999 (initially published with commentary at 64 Fed. Reg. 37042 (1999), now codified without substantial change at 28 C.F.R. part 600, §§ 600.1 to 600.10 (2003)). The commentary explains that these regulations permit

appointment of Special Counsel to investigate and, when appropriate, to prosecute matters when the Attorney General concludes that extraordinary circumstances exist such that the public interest would be served by removing a large degree of responsibility for a matter from the Department of Justice.

Section 600.1 of the regulations confers almost absolute discretion on the Attorney General by authorizing appointment of a Special Counsel when the AG

determines that criminal investigation of a person or matter is warranted and —

(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

While a Special Counsel is, according to the commentary, "free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought," he may only do so "within the context of the established procedures of the Department" — and even then the regulations envision that

ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General (or the Acting Attorney General if the Attorney General is personally recused in the matter); thus, the regulations explicitly acknowledge the possibility of review of specific decisions reached by the Special Counsel.

The AG's discretion also includes selecting the Special Counsel (section 600.3), defining the scope of his mandate and approving any changes to it (section 600.4), presenting the Special Counsel with a list of DoJ staff to choose among (section 600.5), controlling the Special Counsel's budget (section 6.008), and even disciplining or firing the Special Counsel (section 600.7(c) & (d)).

A bevy of Democratic Senators — Schumer, Daschle, Biden, Levin, and Rockefeller — are now demanding that Attorney General John Ashcroft appoint a Special Counsel under these provisions to investigate the leak regarding Mrs. Wilson. They've given no very good reason for their demands other than their reflexive distrust of Ashcroft.

So far, however, Ashcroft appears to be keeping the matter in-house at DoJ. Although he personally has "not entertained questions about appointing a special counsel," and although Fox News claims that another administration official has stated that Ashcroft "would not likely appoint a special counsel," the preconditions for appointment cited by that unnamed official pretty closely track the regulations — which collapses Fox News' story back into "he'll appoint one only if he thinks he should appoint one." And Rebecca Carr of the Atlanta Journal-Constitution has this remarkable report:

John Dion, head of the [Justice D]epartment's counterespionage section, not Ashcroft, decided to initiate the investigation Friday into who identified [Mrs. Wilson], a CIA officer, to syndicated columnist Robert Novak and two Newsday reporters. As is the department's custom in such cases, he did not consult Ashcroft first.

(Emphasis added by Beldar.) However, Carr goes on to report that the option of appointing a Special Counsel "has not been ruled out, according to Mark Corallo, chief spokesman for the Justice Department." Indeed, section 600.2 of the regulations, which lists the "alternatives available to the Attorney General," expressly envisions that an AG can start the investigative ball rolling with career staff, without thereby foreclosing the option of switching:

When matters are brought to the attention of the Attorney General that might warrant consideration of appointment of a Special Counsel, the Attorney General may:

(a) Appoint a Special Counsel;

(b) Direct that an initial investigation, consisting of such factual inquiry or legal research as the Attorney General deems appropriate, be conducted in order to better inform the decision; or

(c) Conclude that under the circumstances of the matter, the public interest would not be served by removing the investigation from the normal processes of the Department, and that the appropriate component of the Department should handle the matter. If the Attorney General reaches this conclusion, he or she may direct that appropriate steps be taken to mitigate any conflicts of interest, such as recusal of particular officials.

Dana Milbank and Mike Allen at WaPo point out that according to a WaPo/ABC News poll, "[n]early seven in 10 Americans believe a special prosecutor should be named to investigate allegations that Bush administration officials illegally leaked the name of an undercover CIA agent." Referring to a separate set of DoJ regulations regarding when and how DoJ can attempt to compel reporters to reveal sources (about which Prof. Eugene Volokh has recently blogged here, here, and here), they say:

Justice Department regulations may make it difficult for Attorney General John D. Ashcroft to leave the matter to his career staff, as he has proposed, particularly if journalists who received the leaks are to be questioned. The regulations state that "no subpoena may be issued to any member of the news media without the express authorization of the Attorney General."

I can't figure out what difficulties Milbank and Allen have in mind, however. Section 600.7(a) of the Special Counsel regs would almost certainly require even a Special Counsel to follow the existing regs regarding compulsion of journalists, including getting Ashcroft's personal okay before issuing a subpoena to Robert Novak or any other journalist:

A Special Counsel shall comply with the rules, regulations, procedures, practices and policies of the Department of Justice. He or she shall consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department, including ethics and security regulations and procedures.

The same section permits a Special Counsel to go straight to the AG to ask permission to deviate from those rules, and section 600.7(b) provides that the AG should "give great weight to the views of the Special Counsel"; but provided that the AG notifies Congress when he's done so (section 600.9), an AG can still veto a Special Counsel's decisions, so he certainly has the power to turn down a Special Counsel's request to subpoena journalists. If Milbank and Allen only mean that Ashcroft personally isn't likely to be able to stay altogether out of the loop (and weren't intending to suggest that these regs might oblige him to name a Special Counsel), I still don't catch the significance. There's no reason to think that Ashcroft personally has any greater conflict of interest than any other political appointee at DoJ, even though he's the target of most of the left-wingers' venom; even Schumer et al. aren't calling for Ashcroft's absolute personal recusal. [See second update below; text now edited to show strike-through wasn't correct. — ed.]

Thus, in terms of where the raw power is and will necessarily remain (at least absent a renewal of the independent counsel law), the appointment of a Special Counsel would not change anything. At least in theory, a Special Counsel appointed under these regs is subject to an Archibald Cox-type "Saturday Night Massacre." This prompts Chatterbox Noah to wonder whether appointment of a Special Counsel "is worth the bother." I certainly agree with Noah that

[i]f John Ashcroft tries to strangle the [Mrs. Wilson] investigation, [it's] guarantee[d] that the fruits of that investigation will find their way into the news media. There are many obstacles to finding the White House's phantom leaker — leakers are notoriously difficult to identify — but political pressure is not one of them.

And I also am confident that within DoJ there are indeed seasoned, ethical, and capable career professionals who can and will do a bang-up, first-rate job. Certainly the first reports about the DoJ staff handling the inquiry suggest that the "A Team" has been called in.

Moreover, I'm extremely skeptical of the general notion that every time someone can hypothesize a "political" connection to a proposed investigation, that automatically means that the Attorney General and the DoJ are "conflicted out." It doesn't take me long to conclude, for instance, that we don't need a Special Counsel to figure out if the Iraq War was Vice President Cheney's payoff to Halliburton. And my gut hunch continues to tell me that there is less to this whole affair than meets the eye — especially if one's eyeballing former Ambassador Joseph Wilson as he makes the rounds of the talk-shows, jokes about "who would play [his wife] in the movie," and (God help me, we've come to the point where I'm linking Maureen Dowd!) calls her "the real-life Jennifer Garner."

What the Special Counsel procedures do accomplish, to the extent they actually have any significance, is to formalize the rules to be followed on what should be comparatively rare occasions when "the public interest," broadly defined, will genuinely be furthered by "removing a large degree of responsibility for a matter from the Department of Justice." Deciding whether this is such an occasion is obviously a judgment call.

Even if you think (as I do) that Amb. Wilson is a bozo, you probably hope (as I do) that his wife and any agents she may have run or contacts she may have made are all safe from retribution by enemies of the US. But the crime — if one has been committed — was against the people of the United States. There would be genuine value to the republic in reassuring its public that possible spy-outers are taken very, very seriously during wartime, and that political connections cannot shelter any such criminals. Dubya's administration has always had an anti-leak passion that dates back to his personal fury at leakers who undercut the GHW Bush Administration for fun and profit during 1989-1993. A nationally televised perp-walk would be a very good thing for the war effort if there are indeed grounds to believe — after a more detailed investigation than can be done in the popular press and the blogosphere — that a crime has in fact been committed here. We can warm up the cell in between Jonathan Pollard and Aldrich Ames, perhaps.

And if it turns out instead that no prosecution is warranted, it would be best for that conclusion to be presented by Ashcroft transmitting the Special Counsel's report to that effect to Congress, rather than just announcing it on his own say-so, if only for purposes of avoiding appearances of impropriety.

So if it were my call, I'd pull the trigger and appoint a Special Counsel now — and in fact I'd pre-authorize him to subpoena Novak or any other journalist and put him on a fast, wide track.

And I even know the highly respected, unemployed ex-Justice Department professional, currently attending baseball games and touring California by bus, who I'd ask to take the job — a former US Attorney for the Southern District of New York who's widely acknowledged to be pretty committed when it comes to War on Terror issues:

Rudy Giuliani.

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UPDATE (Thu Oct 2 @ 9:30am): Prof. Glenn Reynolds has graciously linked this post from InstaPundit, and also posted a terrific movie dialog quote and a reprint of a piece he wrote for Newsday in 1999 regarding the unlamented expiration of, and many flaws in, the Independent Counsel Act. (Now I feel guilty that I didn't buy his very relevant book, Appearance of Impropriety, back in August despite our disagreement over Jamie Gorelick's conflict of interest.) And Ernie the Attorney also seems to like Jennifer Garner — or at least appreciates my creativity in finding a way to include her picture in a post that's otherwise a bit heavy on citations to the Code of Federal Regulations.

UPDATE (Thu Oct 2 @ 5pm): The New York Timesreports that Attorney-General Ashcroft may indeed have personal ties to one potential suspect, Karl Rove, based on Rove having served as a consultant for Ashcroft in Ashcroft's own political campaigns for governor and then senator in Missouri. Thus, contrary to what I wrote earlier, that may indeed pose a possible basis upon which Ashcroft might have to personally recuse himself, even if it didn't oblige whoever's next in line downstream to disqualify all of DoJ. It should not, however, make any ultimate difference because someone acting in Ashcroft's place would essentially step into his shoes and wield all his powers — including the power to appoint a Special Counsel or to refuse to do so, and also including the power to decide whether to subpoena journalists like Novak to get at their leak sources. And it could be that Ashcroft is hoping that an early vindication of Rove would solve the problem anyway.

Wednesday, October 01, 2003

Bizarre headine: "Dead pope will not be hammered"

I had to re-read this UPI article, but yes, there is a legitimate (sorta) reason for what initially struck me as a supremely tasteless headline. On close examination, it's only a moderately tasteless headline.

Just replace "-at-" with the "at sign," that lower-case letter A in a circle that you get from typing SHIFT+2. Due to aggressive spam filtering, however, I'm likely to miss your email unless the subject line of your email starts with "BeldarBlog."

Emails re broken links, typos, and spelling, grammar, and usage errors are cheerfully solicited and will be gratefully received.